Zahid Vs State of Up and 9 Others

Neutral Citation No. - 2024:AHC:128176

Court No. - 50

i) Case :- WRIT - B No. - 2326 of 2024

Petitioner :- Zahid Respondent :- State Of Up And 9 Others Counsel for Petitioner :- Anjani Kumar,Narendra Kumar Shukla,Vivek Kumar Singh

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Counsel for Respondent :- C.S.C.,Pradeep Singh

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AND

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ii) Case :- WRIT - B No. - 2337 of 2024

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Petitioner :- Gayasuddeen Respondent :- State Of Up And 29 Others Counsel for Petitioner :- Anjani Kumar,Narendra Kumar Shukla,Vivek Kumar Singh

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Counsel for Respondent :- C.S.C.,Pradeep Singh

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Hon'ble Ashutosh Srivastava,J.

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Both the above referred writ petitions involve identical questions of law and facts. The Writ Petition (B) No. 2326 of 2024 is being treated as the leading writ petition and the facts pertaining to the same is being considered for deciding the controversy involved.

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Heard Shri Anjani Kumar, learned counsel for the petitioner, learned Standing Counsel for the State-respondents, Shri Pradeep Singh, learned counsel who has accepted notice on behalf of the respondent No. 4, the Land Management Committee concerned.

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The writ petition has been filed questioning the legality, propriety and correctness of the order dated 21.7.2023 passed by the Board of Revenue, U.P. at Lucknow in revision preferred by the petitioner against the order dated 22.7.2017 passed by the Assistant Record Officer, Obra, Sonebhadra under Section 49 of the U.P. Revenue Code, 2006 (hereinafter referred to as the "Code, 2006").

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The writ petition arises out of the proceedings under Section 49 of the Code, 2006 which deals with the procedure for revision of maps and records under Sections 46 and 47 and also includes survey, map correction, field to field portal and test and verification of current records of rights.

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This Court under its order dated 8.7.2024, noticing the fact that the order passed by

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the Assistant Record Officer in exercise of powers under Section 49 of the Code, 2006 has been made appealable under Section 49 (8) of the Code, 2006 before the Record Officer which in turn has been made subject to the provisions of Section 210 to be final, the petitioner had approached the Board of Revenue assailing the order of the Assistant Record Officer dated 22.7.2017 by passing the appeal under Section 49 (8) provided had required the learned counsel for the petitioner as also the learned Standing Counsel to address the Court on the question as to whether the revision under Section 210 of the Code, 2006 is maintainable directly assailing an order passed by the Assistant Record Officer in exercise of powers under Section 49 of the Code, 2006 or not.

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Learned counsel for the petitioner has placed reliance upon a decision of the coordinate Bench dated 18.8.2023 passed in Writ-C No. 10192 of 2023 (Paltoo Ram Yadav versus State of U.P. and 6 others) Neutral Citation No. 2023:AHC:166655 to submit that the revision would be maintainable basing his submissions upon Para 41 of the judgment.

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Learned Standing Counsel appearing for the State-respondents on the other hand, in opposition to the writ petition, submits that the statutory provision of an appeal under Section 49 (8) of the Code, 2006 cannot be bypassed and the revision under Section 210 of the Code, 2006 was not maintainable and the writ petition is liable to be dismissed.

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I have heard learned counsels for the parties and have perused the records.

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Admittedly, the petitioners herein has assailed the order dated 22.7.2017 passed by the Assistant Record Officer in exercise of powers under Section 49 of the Code, 2006 directly in a revision before the Board of Revenue under Section 210 of the Code, 2006. Section 49 (8) of the Code, 2006 provides that any person aggrieved by an order of the Assistant Record Officer made by him under Sub-Section (6) or (7) may prefer an appeal within 30 days from the date of such order to the Record Officer and the order of the Record Officer passed on such appeal has been made subject to the provisions of Section 210, which shall be final.

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In order to appreciate the submissions of the respective parties, the Court proceeds to examine the provisions of Section 210 of the Code, 2006, which is quoted hereunder:-

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"Section 210. Power to call for the records.-(1) The Board or the Commissioner may call for the record of any suit or proceeding decided by any subordinate Revenue Court in which no appeal lies, for the purpose of satisfying itself or himself as to the legality or propriety of any order passed in such suit or proceeding; and if such subordinate court appears to have-

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(a) exercised a jurisdiction not vested in it by law; or

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(b) failed to exercise a jurisdiction of vested; or

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(c) acted in the exercise of such jurisdiction illegally or with material irregularity; the Board, or the Commissioner, as the case may be may pass such order in the case as it or he thinks fit.

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(2) If an application under this section has been moved by any person either to the Board or to the Commissioner, no further application by the same person shall be entertained by the other of them.

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Explanation.— For the removal of doubt it is, hereby, declared that when an application under this section has been moved either to the Board or to the Commissioner, the application shall not be permitted to be withdrawn for the purpose of filing the application against the same order to the other of them.

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(3) No application under this section shall be entertained after the expiry of a period of sixty days from the date of the order sought to be revised or from the date of commencement of this Code, whichever is later."

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A perusal of the provisions of Section 210 of the Code, 2006 reveals that a revision would be maintainable only where no appeal lies. Thus, the revision preferred by the petitioner was clearly not maintainable and is accordingly, held to be not maintainable. Earlier the corresponding provisions were provided in Section 219 of U.P. Land Revenue Act, 1901 and in Section 333 of the U.P. Zamindari Abolition & Land Reforms Act, 1950 which provided that "where no appeal lies or where appeal lies, but has not been preferred revision lies". Both the above enactments have since been repealed by the enforcement of the Code, 2006 and the earlier position has not been followed under the Code.

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In view of the above, this Court is not inclined to interfere with the impugned order of the Board of Revenue and liberty is granted to the petitioner to file an appeal against the order of the Assistant Record Officer, under Section 49 (8) of the Code, 2006 within six weeks from today along with an application seeking condonation of delay stating that he had been prosecuting the revision before the Board of Revenue and the writ petition before this Court.

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In the eventuality of the appeal being filed within the time allowed by this Court along with delay condonation application, the Appellate Authority shall liberally construe the same, entertain the appeal and pass appropriate orders on merits without being influenced by the order of the Board of Revenue dated 21.7.2023. The entire exercise shall be done within a period of three months from the date of service of certified copy of the order of this Court.

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Both the aforesaid writ petitions are accordingly, disposed of .

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Order Date :- 23.7.2024 Ravi Prakash

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(Ashutosh Srivastava, J.)

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Digitally signed by :- RAVI PRAKASH High Court of Judicature at Allahabad

Zahid v. State of Up and 9 Others

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